ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
which the corporate’s liability attaches. An indi - vidual can be liable as a secondary party under Section 8 of the Accessories and Abettors Act 1861 to an offence committed by a corporate, and vice versa. There is no rule or policy dictat - ing whether the prosecution of an individual or a corporate takes primacy. Individuals and corporates can be charged with conspiracy, although a corporate cannot con - spire with an individual if that individual is the directing will and mind through which the cor - porate’s liability attaches. If a corporate is liable for a criminal offence, it does not necessarily follow that its officers, agents or employees will also be liable, nor does the corporate’s liability necessarily prevent or extinguish the liability of individuals. Some stat - utes have specific provisions detailing the liabil - ity of associated individuals, such as employ - ees, directors or managers, where a corporate is criminally liable (eg, where the corporate has committed the offence with the consent or con - nivance of the individual). Anti-Corruption Offences and Corporate Criminal Liability The standard rules of corporate criminal liabil - ity apply to all criminal offences unless speci - fied otherwise, including those that may cover various types of corruption (although a company cannot be liable for an offence with a mandatory sentence of imprisonment, such as murder). As such, corporates may be guilty of such offences if the identification principle is satisfied. The offences of bribery under Sections 1, 2 and 6 of the Bribery Act now have an expanded iden - tification principle covering “senior managers” (see above), but it remains to be seen whether this expansion of the principle will lead to more
prosecutions of corporates for these substan - tive bribery offences or whether prosecutors will continue to favour the Section 7 failure to pre - vent offence, which does not have to rely on the identification principle at all.
4. Defences and Exceptions 4.1 Defences
It is not possible to set out here all the possible general defences available to criminal offenc - es in England & Wales, nor all the specific or nuanced defences that may apply to the myriad offences that cover various types of corruption. Highlighting the Bribery Act offences, it is a defence for a corporate charged with an offence of failure to prevent bribery to show that it had adequate procedures in place to prevent such conduct (discussed in more detail previously in this chapter). Under Section 13 of the Bribery Act it is a defence to conduct charged under Section 1 and Section 2 of the Act for a person to prove that the conduct was necessary for the proper exercise of any function of an intelligence service, or the proper exercise of any function of the armed forces engaged on active service. 4.2 Exceptions Section 13 of the Bribery Act does not provide a defence to conduct charged under Section 1 of the Act if that same conduct would also be an offence under Section 6 (bribing a foreign public official). 4.3 De Minimis Exceptions As set out above, there are no de minimis exceptions for offences under the Bribery Act or, indeed, the other potential offences outlined above that cover various types of corruption.
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